Han v Gomez[2018] QCATA 76

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Han was the respondent in a minor civil dispute involving a claim for payment of an amount for damage alleged to have been caused by him to Mr Gomez’s motor vehicle. Mr Han did not file a response to the application and Mr Gomez obtained a decision by default on 11 January 2017 with costs and interest totalling $3,702.25.^[1]
2. [2]
   Mr Han then filed an application to have the decision by default set aside.^[2] The application to set aside the decision by default was refused on 20 March 2017 and Mr Han has now appealed that decision.
3. [3]
   As the application was in the Tribunal’s Minor Civil Dispute jurisdiction, a grant of leave to appeal by the Appeal Tribunal is required before the appeal can proceed.^[3]
4. [4]
   Leave to appeal will ordinarily only be granted where: there is some question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is whether leave is necessary to correct a substantial injustice to the applicant, caused by some error.
5. [5]
   It is submitted, on behalf of Mr Han, that leave to appeal should be granted because the basis of the appeal is purely a matter of law. That is, either the application exceeds the jurisdiction of the Tribunal or, if the Tribunal did have jurisdiction, the application for a decision by default should have been determined under s 50A of the QCAT Act as it involved an assessment of unliquidated damages.
6. [6]
   I note that these grounds were not raised in the application to have the default decision set aside. Mr Gomez submitted that those grounds of appeal should not be considered. The Tribunal, though, should always consider matters in regards to jurisdiction even if it has to raise them itself.^[4]
7. [7]
   As the grounds of appeal go to the question of the Tribunal’s jurisdiction, leave to appeal will be granted.
8. [8]
   The Appeal Tribunal, in determining an appeal on a question of law, may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the tribunal who made the decision for reconsideration.^[5]
9. [9]
   The original application was made on the Electronic Application for Minor Civil Debt – Minor Debt form, which relevantly sets out the claim by the Applicant against the Respondent as follows:

   1. (a)
      Payment of costs to repair the Applicant’s Motor Vehicle;
   2. (b)
      The Respondent caused damage against the Applicant’s Motor Vehicle by tipping a solvent onto the Motor Vehicle and scratching same;
   3. (c)
      On 30 November 2015, the Applicant engaged Archer’s Smash Repairs to repair the vehicle;
   4. (d)
      Archer’s Smash Repairs provided a quote of $3,295.11 as costs to repair the Motor Vehicle on 11 November 2015;
   5. (e)
      The Applicant has, through its debt collection agent, made demand for the payment of $3,295.11 from the Respondent;
   6. (f)
      The Respondent has refused to pay the outstanding amount for costs to repair the Motor Vehicle; and
   7. (g)
      The Respondent is indebted to the Applicant for the costs to repair the Motor Vehicle in the sum of $3,295.11, the debt of which is immediately due and owing to the Applicant.
10. [10]
    Filed with the application was a copy of the quote for repairs from Archer’s Smash Repairs and a Queensland Police Service Court brief in regards to the alleged incident.
11. [11]
    The application for a decision by default, filed on behalf of Mr Gomez, confirmed that the application was for a debt or liquidated demand with interest, that no response had been filed, and it was accompanied by an affidavit confirming that the Respondent had not paid the amount claimed by the Applicant.
12. [12]
    Mr Han, in his application to have the decision by default set aside, stated that he had not responded to the application as he was waiting for a hearing date before obtaining legal advice and filing a defence. He also stated that he had not caused the damage to the vehicle, that the matter had been subject to criminal proceedings, and the charges were withdrawn. Mr Gomez submitted that, in accordance with the decision in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd,^[6] Mr Han was required to provide a reasonable excuse as to why he had not filed his response and that, in the circumstances, his excuse was not reasonable.
13. [13]
    The learned adjudicator accepted Mr Gomez’s submissions and the application to set aside the default decision was refused.
14. [14]
    It is submitted for Mr Han that the Tribunal is a creature of statute and its jurisdiction can come solely from the Act which creates it and from legislation in other enabling Acts, and that the definition of what constitutes a Minor Civil Dispute is contained in Schedule 3 of the QCAT Act. This relevantly provides:

Minor civil dispute means—

1. (a)
   A claim to recover a debt or liquidated demand of money, with or without interest up to the prescribed amount; or

2. (b)
   A claim arising out of a contract between a consumer and a trader…

3. (c)
   A claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle.

15. [15]
    It was further submitted for Mr Han that the closest Mr Gomez gets to jurisdiction is subsection (c). However, the claim is not one which is ‘caused by or arising out of the use of a motor vehicle’. It is one of wilful damage to a motor vehicle, and is classically a claim of trespass to chattels, or intentional interference with goods. There is no scope for this Tribunal to hear and determine such a claim.
16. [16]
    Mr Gomez submitted that there may be no appeal against a decision in regards to setting aside a default decision in accordance with s 142(2)(b) of the QCAT Act. Clearly, though, that refers to a decision to set aside a decision by default, and the decision in question is a decision to refuse to set aside a decision in default.
17. [17]
    In considering the substantive grounds, the submissions on behalf of Mr Gomez were that the jurisdiction of the Tribunal is set out in s 12 of the QCAT Act rather than the definition section, and that the relevant parts of the section are:

s 12(a) for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable;

s 12(d) for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage.

18. [18]
    A quote from the decision of Ogdens Ltd v Weinberg is cited in support of Mr Gomez. The whole of that quote is as follows:^[7]

… the word “debts” no doubt, means something recoverable by an action for debt, and nothing can be recovered in an action for debt except that which is ascertained, or can be ascertained. A claim for an amount which is uncertain, and cannot be adjusted in an account, cannot, I think, be justly called a “debt”…

19. [19]
    Mr Gomez submits that the debt is not a sum for an unliquidated demand, but a certain sum which is due and owing, and therefore liquidated; it shows the cost of repair to be a precise and liquidated amount as detailed in the claim being the sum of money due to Mr Gomez to fix the vehicle.
20. [20]
    While the amount which is claimed by Mr Gomez is certain, his right to that amount is not. For something to be claimable as a debt it must be fixed by contract and due for payment.^[8] The claim itself states that it is for damage to a motor vehicle. It is also not a liquidated demand as that requires the amount to be able to be ascertained with reference to another document such as a contract or award. I agree with the submissions on behalf of Mr Han that the application is not in respect of a debt.
21. [21]
    Mr Gomez submitted that the application came within the meaning of ‘caused by or arising out of the use of motor vehicle’ having regard to several High Court authorities which had given a wide interpretation to the words ‘arising out of’ and noting that it was wider than that imported by the word ‘caused’. I do not disagree with those submissions as far as they go. The operative word in this case is ‘use’, though, as noted on behalf of Mr Han. The damage caused to the vehicle here is not any result of the ‘use of, a vehicle’. I therefore accept the submission on behalf of Mr Han that the application is not in respect of damage to property caused by, or arising out of, the use of a vehicle.
22. [22]
    There was a further ground of appeal that, if the application was accepted by the Appeal Tribunal, then any decision by default should have complied with s 50A of the QCAT Act and r 60A of the QCAT Rules in relation to unliquidated damages. This would have required an affidavit stating the basis upon which the claim for unliquidated damages is claimed and all information necessary to show how the claim has been calculated, including annexing supporting material. Having regard to my findings above, it is not necessary to consider this ground of appeal.
23. [23]
    I accept that the learned adjudicator was in error because they should have had regard to the question as to whether or not the Tribunal had jurisdiction in respect of the application before granting the decision by default. It is clear that the Tribunal did not have jurisdiction, because the application is not in respect of a minor civil dispute as it is not a debt or liquidated demand, nor is one involving damage to property caused by, or arising out of the use of, a vehicle.
24. [24]
    The decision by default must therefore be set aside.
25. [25]
    It was submitted at the hearing on behalf of Mr Han that the Appeal Tribunal should, if the Appeal were upheld, exercise its discretion to transfer the original application to the Magistrates Court under s 52 of the QCAT Act.  Mr Gomez supported that submission. I note that the decision by default can be enforced by filing it in the Magistrates Court under s 131 of the QCAT Act and therefore it is appropriate that the Magistrates Court should have notice of this Appeal Decision. The Appeal Tribunal has transferred application to a Court of appropriate jurisdiction in similar cases to this one.^[9]
26. [26]
    The decision of the Appeal Tribunal is that:

    1. (a)
       Leave to appeal is granted;
    2. (b)
       The Appeal is upheld;
    3. (c)
       The Tribunal’s decision of 20 March 2017 is set aside;
    4. (d)
       The Tribunal’s decision of 11 January 2017 is set aside; and
    5. (e)
       The Application filed on 21 October 2016 is transferred to the Magistrates Court of Queensland at Southport.